Kentucky Law Journal, Vol. 62, No. 2 (1974), pp. 421-451


It is hardly news that the Supreme Court has changed since the innovative Sixties. In cases involving obscenity, juvenile justice, loyalty oaths, loss of nationality, preinduction review of selective service board orders, and federal injunctive and declaratory relief against state criminal prosecutions, the Burger Court has shown that its judicial philosophy is substantially different from that of the Warren Court. Nowhere is this change more evident than in the field of criminal procedure. Since June 23, 1969, when Warren E. Burger became the fifteenth Chief Justice, it has grown increasingly obvious that the Burger Court intends to reverse the trend of the past decade and to constrict rather than expand the rights of the accused. The Burger Court has given the imprimatur of the Constitution to nonunanimous jury verdicts in state criminal cases and to use immunity in return for compelled incriminating testimony. Important decisions of the Warren era extending the rights of the accused have been eviscerated by narrow interpretations and by nonretroactive application. In cases where an accused's rights were plainly violated, convictions have nevertheless been upheld by generous construction of the harmless error doctrine. Moreover, concurring and dissenting opinions by Chief Justice Burger and other recent appointees have indicated a desire to limit severely or overrule completely some of the controversial Warren Court decisions.

The Court's shift in attitude has made conditions ripe for an astonishing development in criminal procedure--evasion of the Supreme Court by state courts willing to protect rights of criminal defendants that are no longer guaranteed during the Federal Constitution as interpreted by the Burger Court.

Several important studies of state court evasion of the Supreme Court have been published over the past twenty years. This article differs from them in two important respects. First, the type of evasion studied in the past occurred under circumstances where the federal rights of the accused were broader than his state rights, and the state courts attempted to narrow those rights. This article considers evasion which permits the accused to assert rights under state law that he might not have under federal law. Second, the means of evasion examined in earlier studies consisted principally of disobedience to or avoidance of mandates of the Supreme Court after cases had been reviewed by the Court and remanded for further proceedings. The evasion analyzed here involves no lawless defiance of the Court; rather, it is accomplished by the expedient of exploiting loopholes in the Court's power of review.

While the number of recent cases which are identifiable as evasive is quite small, the evasion cases decided since 1969 are nevertheless of tremendous importance; they are the harbingers of a new era in criminal procedure. After a decade of Warren Court activism in which federal rights assumed unheard of importance in state criminal trials, the decisions of the Burger Court indicate that henceforth the Constitution will assure only basic standards of protection, and all rights above this minimum level will exist, if at all, only by virtue of state law. Against the background of the Burger Court decisions, the evasion cases indicate that the nation is moving into a new period of federalism in criminal procedure in which the state-based rights of criminal defendants will assume increasing significance as federal-based rights play an ever-diminishing role.

Just how this shift can and to what extent it will occur requires first an analysis of the Supreme Court's authority to review state court decisions. This analysis is made in Part I. Thereafter, Part II will examine the evasion of the Burger Court which has occurred to date, and Part III will explore the possibilities for future evasion.

Included in

Criminal Law Commons